Dick Gephardt apparently did an oral-podiatral maneuver today, when he said (and according to C-SPAN, it’s not out of context), “When I’m president, we’ll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day.”

Instapundit says:

That’s absolutely pathetic. Either (1) Gephardt, despite all his years in Congress, has still failed to learn that you can’t overturn a Constitutional decision by the Supreme Court with an executive order; or (2) Gephardt was in Full Pander Mode and hoped his audience wouldn’t know better. Neither speaks very well for him.

There’s actually a third possibility, perhaps unthinkable for law professors. Perhaps he simply doesn’t accept Marbury vs. Madison (i.e., Glenn’s option 1 is incorrect, because in fact a president can do so. The issue is whether or not he or she may…)

What does he mean!? ask the blog readers.

Simply put, the precedent set by MvM has been accepted, but only by common consent. It’s never really been seriously challenged. There is no doubt that such a challenge would constitute a constitutional crisis of the highest order, and would have the potential to result in the fall of the republic as we know it. But that doesn’t mean that a president couldn’t issue it.

I ask: what would happen if it were? I suspect that it would strongly depend on the popularity of the president in question, and the particular issue on which such a challenge was made. If he had the support of the military, and popular support as well, such a challenge might well be successful, which would then raise the question, if not the Supreme Court, who is the guardian of the Constitution?